The City of Independence v. Richardson

• Citation: 232 P. 1044,117 Kan. 656
• Decision Date: 07 February 1925
• Docket Number: 25,647
• Parties: THE CITY OF INDEPENDENCE, Appellee, v. CHARLES RICHARDSON, Appellant
• Court: United States State Supreme Court of Kansas

232 P. 1044

117 Kan. 656

THE CITY OF INDEPENDENCE, Appellee, v. CHARLES RICHARDSON, Appellant

No. 25,647

Supreme Court of Kansas

February 7, 1925

Decided January, 1925

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

LICENSE TAX--Rooming House--City of Second Class No Power to Levy and Collect License Tax from Keeper of a Rooming House. A rooming house is neither a boarding house, a hotel nor a tavern, nor is the manager of a rooming house an innkeeper, within the terms of R. S. 14-415, which authorizes cities of the second class to levy and collect license taxes on boarding houses hotels, taverns and innkeepers and some fourscore other specifically listed occupations, trades and businesses, but which does not mention rooming houses.

P. L. Courtright, of Independence, for the appellant.

Charles D. Shukers, city attorney, for the appellee.

OPINION

DAWSON, J.:

The defendant was convicted of violating an ordinance of the city of Independence. His offense was that of operating a rooming house without a license. He appeals, raising the question that the city has no statutory authority to impose license taxes on rooming houses.

The license tax imposed on defendant's business was as follows:

"HOTELS, RESTAURANTS AND ROOMING HOUSES.

"SECTION 8a. Each hotel having 25 or more guest rooms, six months, $ 10.50.

"SEC. 8b. Each hotel having less than 23 guest rooms, six months, $ 10.50.

"SEC. 8c. Each rooming house having 5 or more guest rooms, six months, $ 5.50.

"SEC. 8d. Each rooming house having less than 5 guest rooms, for each guest room, six months, $ 1.50."

The penalty for violating this ordinance imposed on defendant was $ 50.

The city cites R. S. 14-401, 14-415 and 14-439 as the basis of its authority to enact the ordinance and to impose a license tax on defendant's rooming house. Defendant calls attention to R. S. 14-416, and it is agreed by the litigants that defendant held a license to conduct a rooming house issued by the state hotel commission under R. S. 36-102, 36-105. Examining these statutes, it will be noted that R. S. 14-401 is a general grant of power to cities of the second class, like Independence, to enact ordinances, "not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city, the preservation of the peace and good order, the supression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect."

In R. S. 14-416 it is provided that all license taxes shall be regulated by ordinance. R. S. 14-439 amplifies the grants of power conferred by R. S. 14-401, and provides means for the enforcement of city ordinances. R. S. 14-415 grants authority to the city to levy and collect license taxes on some fourscore trades, professions and occupations specifically enumerated. A rooming house is not included in this list unless it can be said to fall into the category of one or more of those expressly covered by the statute, to wit: "boarding houses, . . . hotels, . . . innkeepers, . . . taverns."

The statute is old. By the General Statutes of 1868, chapter 19, § 4, cities of the second class were authorized to levy and collect license taxes on several specified kinds of business, including taverns and public boarding houses. By an act of 1872, ch. 100, § 47, such cities were given authority to levy and collect license taxes on an enlarged list of trades and occupations, which included taverns and public boarding houses. By an act of 1881, ch. 40, § 3, the list of occupations, etc., subject to city license taxes was further expanded into its present scheduled classification, viz.:

"The city council shall have exclusive authority to levy and collect a license tax on auctioneers, artists, agents (including insurance, real estate, loan and mercantile agents), book or map agents or canvassers, boarding houses, billiard tables, bridge companies or bridge corporations, bankers, banking houses or corporations, bowling alleys, corporations, contractors, commission merchants, concerts, cattle dealers, coal yards, corn doctors, circuses, doctors, dentists, druggists, express companies and agencies, exhibitions for pay, fortune tellers, gaugers, gift enterprises, grocers, hotels, hotel runners or solicitors, horse dealers, hackney or livery carriages, horoscopic views, innkeepers, inspectors, insurance companies (including accident, life, fire or marine insurance companies), ice dealers, intelligence offices, livery-stable keepers, lung testers, lawyers, merchants, museums, menageries, muscle testers or developers, magnifying glasses, newspapers and publishing houses, omnibuses, public buildings, halls and grounds, peddlers, pawnbrokers, photographists, porters, public lecturers for pay, patent-right dealers, public masquerades, public balls and street exhibitions, pistol or shooting galleries, private hospitals, retailers, railroads and railroad companies (including street or horse railroads), shows, stockyards, theaters and theatrical exhibitions, taverns, ten-pin alleys (without regard to the number of pins used), telegraph and telephone companies, wood yards, wagon yards, and all wagons and other vehicles transporting merchandise or passengers for pay." (R. S. 14-415.)

It will thus be seen that the statute authorizing cities of the second class to levy and collect license taxes has undergone no change in forty-four years. And since rooming houses are not expressly included in the list of businesses which may be subjected to license taxes, the court is bound to hold that the ordinance is void as to the exaction of license taxes on rooming houses, unless they may fairly be characterized as boarding houses, hotels or taverns, or unless their conductors can be fairly designated as innkeepers.

The establishment maintained by defendant, according to the agreed statement of facts--

"Consists of a two-story building containing seven or more rooms, equipped and maintained as bedrooms; that at all times hereinbefore mentioned the said defendant let said rooms to roomers, either by day, week or month; that he did not furnish them with or sell them food or refreshments."

It seems clear that defendant's rooming house was not a "boarding house" within the terms of the statute. A boarding house furnishes its patrons with both food and lodging. Neither is it a...